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John Bellinger Explains How To Make a UN Security Resolution Legally Binding

By on September 29, 2013 5:26 pm in International Law, Uncategorized

Many commentators, including a lot of international lawyers and scholars, have scrutinized the (as yet unnumbered) UN Security Council resolution worked out between the US and Russia and among the P-5 members of the Council regarding Syria and chemical weapons.  My quick take when the draft resolution was released on Thursday night is here at Opinio Juris; Jack Goldsmith comments at Lawfare and the Heritage Foundation’s Brett Schaefer and Baker Spring comment at National Review.  One important question on everyone’s minds, however, is whether, and in what sense, the resolution is a legally “binding” one, an order of the Security Council that under the Charter requires compliance – legally binding on Syria, the government and the warring parties there.  Is this merely a recommendation or is it a legally binding order of the Council?

Many readers will shrug and think this is not actually of any importance, being merely – so to speak – the flotsam and jetsam of UN legal processes floating on the currents of realist waters where matters are genuinely determined.  One can be a realist and still acknowledge, however, that the legal forms are not always and necessarily supervenient on international politics; they both reflect perceptions of legitimacy and help shape them, and they don’t have to be “determinative” in some strong sense to be relevant and important. Given that the law has some independent weight here, the forms of legal signaling matter.  Former State Department Legal Adviser John Bellinger explains what they are in this informative post at Lawfare:

There is no agreed form of words to make UNSCRs legally binding and, over the last sixty years, the Security Council has been inconsistent in its practice.  In recent years, many international law experts (including many government lawyers for the P-5 members of

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Greenpeace & Russia – an International Pussy Riot

By on September 29, 2013 3:01 pm in Environment, International Law, Russia

I blogged earlier about Russia’s illegal seizure of a Greenpeace vessel in international waters, and its laughable characterization of their acts as maritime piracy. The ship Arctic Sunrise had been boarded after an attempt to board or come alongside a Russian oil rig for some kind of non-violent protest. Subsequently, Vladimir Putin apparently poured cold water on potential piracy charges, leading some to think it would be a passing squall.

Instead, a Russian court has ordered all 30 crew members of varying nationalities jailed for two months pending an investigation. The ship also not been released, and the Netherlands, as the flag state, may file prompt release proceedings in the International Tribunal for the Law of the Sea.

The incident is a kind of international Pussy Riot. You may recall that Russia gave two-year jail sentences to members of that “feminist punk rock protest group” for some kind of raunchy, uninvited performance in a Russian Orthodox Church. (I am not entirely clear on the goals of the group or their methods.) While the sentence was widely decried, it does seem that Pussy Riot was engaged in a particularly provocative protest, that almost certainly took liberties with other people’s property. The legal action against them was not unreasonable – it was the nature and severity of the action that defied all proportion, and revealed a heavy-handed intolerance of protest.

Greenpeace is in a similar situation. They may have committed technical trespass, and certainly should not protest at finding themselves in court. But jail is another matter. There is one big difference: with Pussy Riot, Putin was bullying his own nationals, in his own capital. Now Russia is throwing its weight around against foreigners on a foreign-flagged vessel in international waters, which is not just thuggish, but a violation [...]

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Russia’s Piracy Charges Against Greenpeace Groundless and Illegal

By on September 25, 2013 5:06 am in International Law, Russia

Russia has seized a Dutch-flagged Greenpeace vessel in international waters, and plans to charge the crew with piracy. The environmentalists had attempted to unfurl a protest banner on a Russian Arctic oil platform. Russian commandos raided the Arctic Dawn and towed it to port.

The unusual piracy charges may well be inspired by a Ninth Circuit decision holding the Sea Shepherd’s “Whale Wars” against the Japanese whaling fleet could constitute piracy under the Alien Tort Statute, as OpinioJuris notes. I agreed with the Ninth Circuit in that case, against much protest. The question was whether piracy requires a motive to steal, and the Ninth Circuit held it does not. But the present matter is entirely different. Here it is Russia’s actions that violate international law.

The Greenpeace activities are most certainly not piracy for several reasons. The modern definition of the offense can be found in Art. 101 U.N. Law of the the Sea Convention (UNCLOS III), Art. 101(a)(1).

First, piracy requires an attack against a “ship.” The Greenpeace incident involved an oil rig, which is not a ship because it is not navigable. (The 1988 SUA Convention dealing with maritime violence beyond piracy required a separate protocol to apply to oil platforms).

Second, piracy requires “acts of violence or detention.” Here the Greenpeace activist merely put a poster on the platform. This does not constitute violence. In the Ninth Circuit case, by contrast, the Sea Shepherd vessels allegedly attempted to ram Japanese whalers, hurled projectiles at them, and so forth. While the defendants argued this did not amount to violence, it is certainly more colorable than a poster. The Greenpeace activists certainly committed trespass, but not piracy.

Indeed, it is Russia that fairly clearly violated UNCLOS by seizing the ship for the misconduct of the crew. [...]

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The Biggest Democracy’s Bigger Death Penalty

By on September 13, 2013 6:42 am in Constitutional Law, Constitutional Theory, Criminal Law, Foreign and Religious Law in American Courts, International Law

India has just sentenced four men to death in the infamous Delhi rape/murder case. India has apparently ended an eight-year moratorium on executions last year, greatly altering the global capital punishment map. At the same time, it also passed a new rape law, which would allow for execution in aggravated cases (not necessarily involving minors) even when no death results. Thus India’s new law goes even beyond what was recently forbidden by the U.S. Supreme Court in Kennedy v. Louisiana.

The problem with determining constitutional law in reference to a “international opinion” and practice is that it keeps changing, and not in a constant direction. In Roper v. Louisiana, the Court famously found the practices of other countries relevant to the constitutionality of the death penalty. A few years later, in Kennedy v. Louisiana, the Court held the death penalty could not be constitutionally applied to child rapists (having given up execution for adult rape a while back).

In Roper, the Court found the countries that had executed juveniles in recent decades to be a motley mix of African and Islamic-law countries. But India is the world’s largest democracy, with Anglo-American legal traditions.

The more interesting point here is not about death penalty jurisprudence per se, but about the underlying assumptions about the reality and inevitability of human moral progress that underpins much of constitutional law’s “evolving consensus” discourse. Unlike in biology, norms and morales can evolve back.

[Of course, the death sentence is far from the end of the line for the Delhi rapists. There will be appeals, pardon requests, and the possibility of a last-minute stay, like the Indian Supreme Court gave this week to a father who beheaded his five daughters in an argument with his two wives.] [...]

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Does it Matter if US Intervention in Syria Violates the UN Charter?

By on September 8, 2013 6:38 pm in International Law, War and Armed Conflict

Most international law experts agree that a US military intervention in Syria would violate the United Nations charter, which forbids the use of force against another state except in self-defense or when authorized by a UN Security Council Resolution. In this case, the Assad regime has not attacked the United States, and there is no chance of a Security Council resolution authorizing intervention, because Russia and China would veto it.

Thus, US military intervention would indeed probably violate the Charter. I am skeptical of the case for intervention on other grounds. But if intervention were otherwise justified, US and its allies should not abandon it out of respect for the UN Charter. The Charter’s requirements are procedurally unjust, and there is no reason to believe that adhering to them has beneficial consequences.

I. Procedural Justice.

Sometimes, we have a moral obligation to follow just procedures even if they produce bad results in particular cases. But the Charter’s procedures for authorizing military intervention are deeply unjust. No matter how egregious a regime’s atrocities against its own citizens, it forbids outside intervention unless the intervention has the consent of two brutal authoritarian states: Russia and China. These governments have an obvious interest in curbing intervention against their client states, and also in shielding their own oppression from outside pressure. It is as if domestic law enforcement operations against organized crime required the prior approval of the two most powerful Mafia families. This is not to say that any intervention opposed by the Chinese or Russian governments is necessarily justified. Sometimes, as in the case of Syria, it may not be. But there is no good procedural reason to give these regimes an automatic veto over interventions being considered by liberal democracies.

If the process by which the Security Council makes [...]

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The U.N. Weighing in on the Zimmerman/Martin Investigation

By on September 6, 2013 11:33 am in International Law, Self-Defense

According to a United Nations press release,

A group of United Nations independent experts today called on the Government of the United State to finalize the ongoing review of the case involving the death of teenager Trayvon Martin, an African-American teenager who was shot in 2012 by a neighbourhood watchman in the state of Florida.

“We call upon the US Government to examine its laws that could have discriminatory impact on African Americans, and to ensure that such laws are in full compliance with the country’s international legal obligations and relevant standards,” said human rights expert Verene Shepherd, who currently heads the UN Working Group of Experts of People of African Descent.

The death of Trayvon Martin sparked a new debate about racial profiling in the United States after the unarmed black 17-year-old was shot and killed in Florida by George Zimmerman, a neighbourhood watchman. Mr. Zimmerman, who argued that he acted in self-defence and with justifiable use of deadly force, was found not guilty of all charges against him.

The US Department of Justice, the US Attorney’s Office for the Middle District of Florida and the Federal Bureau of Investigation are currently evaluating the evidence generated during the federal investigation, as well as the evidence and testimony from the state trial, trying to establish potential civil rights charges linked to the case.

“The Trayvon Martin case has highlighted the importance of the need to review those existing laws and policies that can have a discriminatory effect on the basis of race, as African Americans become more vulnerable to such discrimination,” Ms. Shepherd said, recalling that the US has been party to the International Covenant on Civil and Political Rights since 1992, the International Convention on the Elimination of Racial Discrimination since 1994, and many other international human rights

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